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October 30, 2011

US v. Fitch and the potential impact of uncharged offense conduct

As noted in this agenda post, our class this Tuesday will focus on the consideration of acquitted and/or uncharged conduct at sentencing, with particular emphasis on the Supreme Court's 1997 ruling in US v. Watts (excerpted in casebook, full text here) and the Ninth Circuit's ruling just last month in US v. Fitch (full opinion here).  To whet everyones' appetite, and perhaps begin our discussion via comments to this post, consider the start of the majority opinion in Fitch:

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering.  The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum — based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

October 30, 2011 in Class activities, Interesting new cases | Permalink


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Not directly about sentencing guidelines, but related to imposed sanctions: http://www.nytimes.com/2011/10/31/us/supreme-court-to-hear-cases-involving-bad-advice-on-plea-deals.html?_r=2&hp

Posted by: Heather Williams | Oct 31, 2011 4:17:00 PM

“Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum — based on uncharged criminal conduct.”

Initially, I was disturbed that the judge could sentence someone for murder without proof beyond a reasonable doubt that there actually was a murder. However, this case is a perfect example of how much discretion judges still possess under current sentencing laws. As the book explains, our system is a “real offense” system because judges sentence based on “real” criminal behavior without regard to the prosecutor’s charging decisions. Moreover, the Supreme Court’s decision in Booker provided judges with additional discretion by ruling that the sentencing guidelines are advisory. Thus, until Congress makes changes to the current sentencing laws, it appears that we will continue to see sentences imposed that are “poignant example[s] of a drastic upward departure from the Guidelines range.”

Posted by: Todd Seaman | Nov 1, 2011 12:07:52 PM

In U.S. v. Fitch, the Court supports its argument with a considerable amount of law, and I don’t question the District Court’s application of law in its decision to sentence the defendant based on Bozi’s death. That said, I cannot understand how sentencing an individual based on uncharged or even acquitted conduct does not violate the 6th Amendment.

The Court seems to try to minimize this conflict by stating that “While the respective fact-finding roles of the judge and jury are based on constitutional principles, it is Congress that assigns the roles through its power to fix statutory maximums. The unfettered exercise of that power has created some curious scenarios…” I could be wrong, but I thought Congress was constrained by the Constitution too?

Establishing a maximum range of 350 years so that the Sentencing Judge, rather than the jury, decides whether someone receives a life sentence, seems like a crude run-around a defendant’s Constitutional rights. It seems to me that this line of cases undoes much of the progress represented by policy makers' acknowledgement that judges can be biased, and can make decisions based on those biases.

Posted by: Will Herbert | Nov 1, 2011 12:16:56 PM

The quote Will pulled out of the Fitch case struck me as well. The rub, as I see it, is the distinction between conviction and sentencing. The 6th Amendment protection does not touch on one's right to be sentenced "upon a jury determination that the defendant is guilty of every element of the crime with which he is charged" only that the conviction for which the sentence is tied rest on such a determination.

For me, this creates a front-end problem with discretion as it relates to what prosecutors charge. If it were incumbent on prosecutors to charge a crime in order for it to be considered in the sentencing phase, would we see different charging patterns? If I were a prosector and and I thought I could get a murder length sentence without having to charge and prosecute the murder I'm probably going to take that route because it would be less burdensome. In an egregious case like Fitch, this seems less problematic....but what I extract this logic out to cases involving drug possession I become much more skeptical.

Posted by: Kevin S | Nov 1, 2011 12:46:39 PM


The Sentencing Commission's report came out, sorry if this is already posted somewhere else.

Posted by: JT | Nov 1, 2011 1:17:42 PM

What I found especially interesting was, if I read the Fitch case correctly, that he was not disputing the facts relied upon by the judge; rather, he was disputing the reliance generally. It seems like he thought he literally got away with murder and then had a major double-take at his sentencing hearing. While I believe that individuals should be punished for the crimes they commit, a tiny part of me doesn't blame the guy for feeling ripped off that he was essentially sentenced for a crime that he had not been convicted of committing.

Posted by: Krystin Brehm | Nov 1, 2011 2:47:13 PM

Maybe it's me, but I think this stuff is nuts. In Watts, I still don't understand how the judge was able to make the finding and input the weapon possession for 2 points on the offense level. The judge can consider past conduct, Williams and all that I understand. But here the jury specifically found that the weapon possession wasn't in furtherance of the drug offense. It's not some nebulous character evidence that is only in consideration at sentencing, it was decided as fact by the jury.

Even if it's not a great constitutional argument based on the jurisprudence, I think it's a terrible policy to allow the judge to effectively circumvent the jury's factual findings at sentencing undermines the credibility of the system. Why have a jury at all?

Fitch is just as bad, maybe worse. As the dissenting judge pointed out, there was no evidence to point to intentional murder, just that there was something shady going on. The sentencing judge based his decision on intentional murder that the state didn't even have enough evidence to charge on. Once again, my constitutional argument is weak, but how can you essentially convict someone of something they weren't even charged for? Why even have trials with juries if a prosecutor can present circumstantial evidence to a sentencing judge and get someone locked away for a long time with a minor conviction?

I don't get it at all. Could be my bleeding liberal-ness (which until now has been pretty subdued), but I think this is unconscionable.

Posted by: Colin P | Nov 1, 2011 3:17:42 PM

I might be getting ahead of us here, but what happens if Fitch is subsequently indicted and tried for the murder of his wife (ex-wife?) and he is acquitted. Does he get a new sentencing hearing on the fraud charges? Or, does Watts apply to subsequent acquittals as well?

One would think Watts applies and Fitch would not be re-sentenced, because of the different standards applied at sentencing (preponderance) and at trial (BARD).

Posted by: Elbert A | Nov 2, 2011 2:28:04 PM

I understand and respect both sides of the argument, but instinctually I can’t help but think, “why should we care Fitch got a heavier sentence for money laundering and fraud when he, most likely, murdered his wife?” I mean if us, as reasonable people / law students, can come to that conclusion, then it’s not absurd to think a jury could, too. If anything, considering the USDC judge come to the same deduction, on a lesser than “proof beyond a reasonable doubt” standard for sentencing purposes, then what is the big deal? A lot of time, money, energy, and resources have been conserved.

Notwithstanding this common sense approach, the judicial system is set up for a reason and, as such, there are procedures that need to be followed. Although I’m typically pro-prosecution, on this particular case and despite my instincts, Fitch really should of had a full out murder trial to ensure that his rights were properly protected. I think it’s one thing for a judge to consider PSIs to get a good overview sense of the defendant’s background and what not, but to consider a factor of this magnitude, namely murder, the upward departure may be quite unjustified. This is despite the historic tradition that judges should have such power to impose individualized sentences.

Moreover, although it’s the judge who is the “who” we are dealing with here, the other silent “who” everyone seems to fail to mention is the prosecutors who didn’t bring forth the charge of murder against Fitch. They had their own discretion to do so, and yet failed to act upon it. If anything, not all the blame should go on the judge alone… a good amount should be distributed onto the prosecutor’s office for failing to do their job which eventually lead to this whole mess.

Posted by: Isabella | Nov 3, 2011 1:27:30 PM

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